AJIL Symposium: Sovereignty and Humanity

by José E. Alvarez

[José Alvarez is the Herbert and Rose Rubin Professor of International Law at New York University School of Law and is the Co-Editor-in-Chief (along with Benedict Kingsbury) of the American Journal of International Law]

As the new co-editor in chief of the AJIL, I, along with my co-EIC, Benedict Kingsbury, are very grateful to Chris Borgen and Opinio Juris for hosting this on-line symposium on the Journal’s April 2013 issue. We also thank the two authors, Eyal Benvenisti and Leila Sadat, for exposing themselves to this trial by fire. It takes courage for scholars to expose themselves to instant and exceedingly public reactions by both the illustrious commentators solicited by Opinio Juris and readers encouraged to add instant posted comments.

The Benvenisti and Sadat pieces address core concerns of our discipline and the Journal is proud to have published these thoughtful contributions. While strikingly different in approach and subject-matter, these articles raise provocative questions about what contemporary sovereignty means and how international law manages to serve the needs of states and the humans that live in them. Both Benvenisti and Sadat are engaged in re-imaging the global rule of law as a tool to defend humanity rather than states as understood at the time of Hobbes or Bodin. Benvenisti re-defines the hoary principle of self-determination, re-conceives of states’ responsibility to protect as a limiting not enabling concept, and transforms the reason-giving requirements found in administrative law into erga omnes obligations that states owe to each other. Sadat uses her empirical findings on the work of international criminal courts to emphasize the need to go beyond the Nuremberg precedent to defend humanity from internecine atrocities that are often not dependent on organizational policies controlled by the state. Both are working within recognizable legal positivist paradigms but both are also driven by normative aspirations to achieve progress through law, or as the centennial annual meeting of the ASIL put it, “a just world under law.”

This on-line symposium is the first (but hopefully not the last) for AJIL. I hope that it is only one step in making the Journal more accessible and useful. A quarterly and peer-reviewed publication like the Journal works under numerous constraints. As our readers know, since nearly half of the Journal consists of sections devoted to coverage of international decisions, the contemporary practice of the U.S., and book reviews, we generally publish, at best, only two lead articles per issue. Competing for those eight slots per year are the 600-800 submissions that we receive annually. (At this mid-year mark, we are now reaching 300 submissions.) Publishing the Journal also takes time. Our double-blind peer review process for reviewing manuscripts requires considerable patience from those who submit articles to us and, in the usual case, considerable hard editing work even for those authors who secure an acceptance of publication. While the over 100 year old Journal now competes with innumerable law reviews here and abroad, the gap between opportunities for print publication (particularly in a peer-reviewed journal) and the ever-rising numbers of members of Oscar Schachter’s “invisible college” has never been wider. Today’s “college” is not an intimate society of individuals trained in a single mind set. It is an ever expanding multitude of persons trained in diverse schools of thought and legal and non-legal disciplines, geographically disparate and often specializing in sub-fields that can no longer be defined as covering only “foreign affairs.” While Benedict and I are attempting to make the Journal ever more reflective of the increasingly diverse “invisible college” (or should we say “invisible colleges”?) from around the world –as through our recent effort to solicit public submissions for an Agora on the Supreme Court’s Kiobel decision—inevitably, prospective AJIL authors will continue to receive more polite rejections than acceptances from us. Web-based symposia such as this one are a great way to expand the conversation beyond the authors who make it to our print edition—to make sure that more of us have a voice in figuring out what makes a “sovereign” and what it means to serve “humanity.”

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